Henry, Associate Justice.—
Appellee instituted this suit to recover from appellant damages for injuries received in a wreck of its train- when he was a passenger on it.
The petition charges that the road was newly constructed and in bad condition, requiring great care in running trains over it; that the train was composed mainly of freight cars loaded with railroad ties and did not have the necessary brakes; that defendant’s servants operating the train by gross negligence and carelessness ran it at the rate of fifty miles-an hour down a heavy grade approaching a bridge, both the track and the bridge being in bad condition, whereby the entire train was wrecked, causing plaintiff great and permanent injuries, which are fully described. The petition alleges that plaintiff was a married man and of great physical vigor before his injury, but without health or strength afterward, and he is now a physical wreck; that from the day he received his injuries he has suffered physical and mental pains, and that by reason of his said injuries he has been damaged fifty thousand dollars.
Plaintiff by amendment filed at the term at which the case was tried set up the facts of his being a skillful physician, engaged previous to his injury in the practice of his profession and realizing therefrom five thousand dollars per annum, all of which he alleged had been lost to him by reason of his having been utterly disabled from pursuing his profession by reason of his injuries. The defendant made an application for continuance to enable it to procure evidence to disprove these allegations. The application was sufficient, and it ought to have been allowed, except for the fact that jfiaintiff replied to it by abandoning and striking from his. petition all allegations to which the application related, after which the motion to continue was properly overruled. The abandonment of these allegations left the plaintiff’s-pleading without any averment that he was a physician, or that he had then or ever had any occupation, or that he-had suffered damage in any respect from loss of occupation, and without an allegation of pecuniary damage in any respect except as resulting from his impaired physical condition and the mental and bodily pain produced, thereby.
[283]*283In this condition of his pleadings plaintiff was allowed to introduce evidence that he was a physician and skillful and efficient as such, but not to prove the value of his services, and was also allowed to prove that he was not then practicing his profession because he was not able to do so. Other witnesses connected his disability with the injuries for which this suit was brought. This evidence was objected to by defendant on the ground that the only allegations under which it was admissible had been abandoned.
In this connection the court gave the following charges:
“It is not necessary that any witness should have sworn to or expressed any opinion as to the amount of such damage, but the jury may themselves make such estimate from the facts.and circumstances in proof and by considering them in connection with their own knowledge, observation, and experience in the business affairs of life.
“If you find for plaintiff you may take into consideration the nature and kind of his business and the value of his services in conducting the same, the probable effect of his injuries in the future upon his health, his ability to labor and attend his business, and generally any reduction of his power to earn money.”
Subsequently at the request of the defendant the court charged the jury as follows: “There is no evidence before you showing any actual pecuniary loss from his business, or that the plaintiff was engaged in any remunerative business whatever prior to his injury, and if you find for plaintiff upon other charges herein given you will exclude from your consideration in estimating the actual damages sustained by him all elements of actual damages except what you may find to be a fair compensation for the physical and mental suffering, which the evidence shows to be the direct and proximate result of the injury.”
It is quite evident that the charge that the jury might take into consideration the nature and kind of plaintiff’s business and the value of his services in conducting the same was an oversight upon the part of the court, and that the purpose of giving the contrary charge at the request of defendant was to correct the error. We would find less difficulty in holding that the error was sufficiently corrected without withdrawing from the jury the objectionable charge, which was the proper thing to do, if the court had not also charged that in estimating the amount of damages it was not necessary that any witness should have sworn to or expressed any opinion as to the amount of such damage, but that they might themselves make such estimate from the facts and circumstances in proof, and by considering them in connection with their own knowledge, observation, and experience in the business affairs of life.
It is true that this charge was in terms limited to “ such damages as are charged in the petition,” and in the petition none are charged, as we [284]*284have said before, except such as resulted from the physical injuries and bodily and mental pain suffered by plaintiff. As so applied we think the charge correct, but at the same time where it is seen that evidence not responsive strictly to the allegations in the petition had been admitted, and as jurors are not skilled in eliminating from the mass of evidence before them such as is strictly responsive to the pleadings, we are not prepared to say or believe that they may not have felt at liberty to apply this charge to the whole case, and thus dispense with the necessity of having the evidence of witnesses as a necessary predicate for any addition to the amount of their verdict on account of the loss of ability of plaintiff to practice and earn money by his profession, or to do other things that a man of his age and former physical vigor, as established by the evidence, can do in the way of maintaining" himself.
Except for this complication the contradiction in the charges would be somewhat relieved by the consideration that as no evidence had been admitted of the value of his services the jury could not, even when directed to do so, have included them in estimating the amount of plaintiff’s damages. Whether or not these things were estimated by the jury and went to increase the amount of their verdict it is impossible to determine. The objectionable charge not having been withdrawn went with them in their retirement for their consideration as a charge of the court of equal ■dignity with the other charges. Whether it received equal or more or less consideration than its opposite can not be known. The correct rule is, we think, when contradictory charges are given which may be material to reverse the case unless it is clear that no prejudice has resulted there.from.
The court charged the jury that “where a railroad car containing passengers is thrown from the track and a passenger who has paid his fare is thereby injured, the presumption is that the accident resulted either from the fact that the track was out of order, or that the train was badly managed, or both combined, and the burden is on the defendant company to show by a preponderance of evidence that it was not negligent in any ■of these respects.”
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Henry, Associate Justice.—
Appellee instituted this suit to recover from appellant damages for injuries received in a wreck of its train- when he was a passenger on it.
The petition charges that the road was newly constructed and in bad condition, requiring great care in running trains over it; that the train was composed mainly of freight cars loaded with railroad ties and did not have the necessary brakes; that defendant’s servants operating the train by gross negligence and carelessness ran it at the rate of fifty miles-an hour down a heavy grade approaching a bridge, both the track and the bridge being in bad condition, whereby the entire train was wrecked, causing plaintiff great and permanent injuries, which are fully described. The petition alleges that plaintiff was a married man and of great physical vigor before his injury, but without health or strength afterward, and he is now a physical wreck; that from the day he received his injuries he has suffered physical and mental pains, and that by reason of his said injuries he has been damaged fifty thousand dollars.
Plaintiff by amendment filed at the term at which the case was tried set up the facts of his being a skillful physician, engaged previous to his injury in the practice of his profession and realizing therefrom five thousand dollars per annum, all of which he alleged had been lost to him by reason of his having been utterly disabled from pursuing his profession by reason of his injuries. The defendant made an application for continuance to enable it to procure evidence to disprove these allegations. The application was sufficient, and it ought to have been allowed, except for the fact that jfiaintiff replied to it by abandoning and striking from his. petition all allegations to which the application related, after which the motion to continue was properly overruled. The abandonment of these allegations left the plaintiff’s-pleading without any averment that he was a physician, or that he had then or ever had any occupation, or that he-had suffered damage in any respect from loss of occupation, and without an allegation of pecuniary damage in any respect except as resulting from his impaired physical condition and the mental and bodily pain produced, thereby.
[283]*283In this condition of his pleadings plaintiff was allowed to introduce evidence that he was a physician and skillful and efficient as such, but not to prove the value of his services, and was also allowed to prove that he was not then practicing his profession because he was not able to do so. Other witnesses connected his disability with the injuries for which this suit was brought. This evidence was objected to by defendant on the ground that the only allegations under which it was admissible had been abandoned.
In this connection the court gave the following charges:
“It is not necessary that any witness should have sworn to or expressed any opinion as to the amount of such damage, but the jury may themselves make such estimate from the facts.and circumstances in proof and by considering them in connection with their own knowledge, observation, and experience in the business affairs of life.
“If you find for plaintiff you may take into consideration the nature and kind of his business and the value of his services in conducting the same, the probable effect of his injuries in the future upon his health, his ability to labor and attend his business, and generally any reduction of his power to earn money.”
Subsequently at the request of the defendant the court charged the jury as follows: “There is no evidence before you showing any actual pecuniary loss from his business, or that the plaintiff was engaged in any remunerative business whatever prior to his injury, and if you find for plaintiff upon other charges herein given you will exclude from your consideration in estimating the actual damages sustained by him all elements of actual damages except what you may find to be a fair compensation for the physical and mental suffering, which the evidence shows to be the direct and proximate result of the injury.”
It is quite evident that the charge that the jury might take into consideration the nature and kind of plaintiff’s business and the value of his services in conducting the same was an oversight upon the part of the court, and that the purpose of giving the contrary charge at the request of defendant was to correct the error. We would find less difficulty in holding that the error was sufficiently corrected without withdrawing from the jury the objectionable charge, which was the proper thing to do, if the court had not also charged that in estimating the amount of damages it was not necessary that any witness should have sworn to or expressed any opinion as to the amount of such damage, but that they might themselves make such estimate from the facts and circumstances in proof, and by considering them in connection with their own knowledge, observation, and experience in the business affairs of life.
It is true that this charge was in terms limited to “ such damages as are charged in the petition,” and in the petition none are charged, as we [284]*284have said before, except such as resulted from the physical injuries and bodily and mental pain suffered by plaintiff. As so applied we think the charge correct, but at the same time where it is seen that evidence not responsive strictly to the allegations in the petition had been admitted, and as jurors are not skilled in eliminating from the mass of evidence before them such as is strictly responsive to the pleadings, we are not prepared to say or believe that they may not have felt at liberty to apply this charge to the whole case, and thus dispense with the necessity of having the evidence of witnesses as a necessary predicate for any addition to the amount of their verdict on account of the loss of ability of plaintiff to practice and earn money by his profession, or to do other things that a man of his age and former physical vigor, as established by the evidence, can do in the way of maintaining" himself.
Except for this complication the contradiction in the charges would be somewhat relieved by the consideration that as no evidence had been admitted of the value of his services the jury could not, even when directed to do so, have included them in estimating the amount of plaintiff’s damages. Whether or not these things were estimated by the jury and went to increase the amount of their verdict it is impossible to determine. The objectionable charge not having been withdrawn went with them in their retirement for their consideration as a charge of the court of equal ■dignity with the other charges. Whether it received equal or more or less consideration than its opposite can not be known. The correct rule is, we think, when contradictory charges are given which may be material to reverse the case unless it is clear that no prejudice has resulted there.from.
The court charged the jury that “where a railroad car containing passengers is thrown from the track and a passenger who has paid his fare is thereby injured, the presumption is that the accident resulted either from the fact that the track was out of order, or that the train was badly managed, or both combined, and the burden is on the defendant company to show by a preponderance of evidence that it was not negligent in any ■of these respects.”
This was instructing the jury that proof of derailment of the train was -equivalent to evidence either that the track was out of order or that the train was badly managed, and was proof of negligence sufficient to authorize a verdict for plaintiff, unless the defendant overcame it by a preponderance of evidence.
The instruction that the facts presumed to exist from proof of the ■derailment cast upon the defendant the burden of proving want of negligence amounts to a charge that proof of an injury to a passenger occasioned by a derailment of the train on which he is being conveyed is evidence of the carrier’s negligence.
If this charge does not in so many words decide for the jury the ques[285]*285tion of negligence, it still does so in effect by charging that such proof devolved upon the defendant the necessity of disproving negligence arising out of that state of facts. If the proposition be correct that proof of an injury resulting to a passenger from such a cause, unexplained and uncontradicted, would be sufficient evidence for a jury tó find against the carrier, it is still incorrect for the court to so declare or charge as a proposition of law. It has been repeatedly decided by this court that the existence of negligence is in such cases as this a question for the jury and not for the court. We do not think that the propositions stated in this charge are correct, either as presumptions of law or fact.
It does not necessarily follow that a car being thrown from the track is caused by the track being out of order, or the train being badly managed, or from both causes combined. The same thing may happen from many other causes. It was the province of the jury to find from the evidence what caused the accident and whether the defendant was negligent. In this case the evidence was conflicting bo.th upon the point of the condition of the track and the speed of the train. The facts, that plaintiff was a passenger and that the car in which he was riding was thrown from the track, whereby he was injured, were undisputed. The charge of the court is that plaintiff's evidence upon the conflicting points is aided by a presumption that casts upon the defendant an additional burden of proof.
This charge the appellant complains was upon the weight of evidence. We think the court erred in giving it.
In some States it has been held that the happening of an accident to a passenger makes out a prima facie case and raises a presumption of negligence, and that the burden is upon the defendant to rebut this presumption.
Wharton, in his Law of Evidence, says: ‘‘‘'Negligence, it has been said, is a presumption which judges will direct jurors to make from the-happening of an accident. No doubt by statute this may be done, as in those States in which legislatures have provided that railroad companies-shall be liable in all cases of firing. But if the question be whether negligence (i. e. a want of due diligence in a particular case) is to be inferred logically from facts which do not indicate negligence, the question answers itself. We have in all cases of injury in which negligence is. charged two hypotheses. The first is that the facts do not show negligence, in which case negligence can not be inferred. The second is that the facts show negligence, in which case the position before us is equivalent to saying that negligence is to be inferred because negligence is shown.”
The Supreme Court of the United States in the case of Transportation Company v. Downer, 11 Wallace, 135, quote with approval from the case of Curtis v. The Rochester and Syracuse Railroad Company, 18 New [286]*286York, 543, the doctrine that “the mere fact that a passenger on a railroad car was injured by the train running off a switch was not of itself, without proof of the circumstances under which the accident occurred, presumptive evidence of negligence on the part of the company. The court said that carriers of passengers were not insurers, and that many injuries might occur to those they transported for which they were not responsible; but as railroad companies were bound to keep their roads, carriages, and all apparatus employed in working them free from any defect which the utmost knowledge, skill, and vigilance could discover or prevent, if it appeared that an accident was caused by any deficiency in the road itself, the cars, or any portion of the apparatus belonging to the company and used in connection with its business, a presumption of negligence on the part of those whose duty it was to see that everything was in order immediately arose, it being extremely unlikely that any defect should exist of so hidden a nature that no degree of skill or care could have discovered it. The accident itself irrespective of the circumstances furnished no ground for any presumption one way or the ■other.”
In the case of Heldt v. Webster, 60 Texas, 209, Justice Stayton says: “Any charge as to a presumption arising from a given state of facts, unless in those cases in which the law raises a conclusive presumption in the nature of things, is a charge upon the weight of evidence, and although other parts of the charge given may have been correct such an error will require a reversal of the judgment.”
We do not think there was error under the circumstances of this case in admitting evidence that plaintiff had a wife and children, nor in allowing the allusions made to them by plaintiff’s counsel in his argument to the jury.
It does not appear that the evidence of the witness Thomas as to the statements of the conductor made after the wreck with regard to the cause of it was objected to when it was given, and not having been, we do not think the charge complained of in the thirteenth assignment was wrong.
It is assigned that the court erred in refusing to give charges Nos. 1, 2, 5, 6, 8, 10, 11, 12, and 14 requested by defendant. None of these charges are set out in the brief of appellant. Nor are the objections to them pointed out. Withou t undertaking to say that all of them were properly refused we are satisfied some of them were. The objectionable charges ■ought to be stated in the brief and the specific objections pointed out.
The witness Kingsbury was permitted to testify that “ I spoke to the conductor and brakeman about the fast running before the wreck, and at Sublime, where we had breakfast, one of the train men—I think Pruitt, the conductor—warned the engineer not to continue running so fast, remarking that the road was unsafe, and when we reached Sublime, [287]*287"where we had breakfast, I heard a train man—I think the conductor-—■ warn the engineer about his reckless running over an unsurfaced, unsafe, .and hastily constructed road.”
. We do not think the rate of speed at which the train was run previous to reaching Sublime is one of the issues in this case. The declarations of the servants of defendant are not admissible unless made about the cause of the wreck and at the time and place of its occurrence under circumstances making them part of the res gestae. We think this evidence ought to have been excluded.
Other errors are assigned, some of them involving questions already adverted to. We do not think they require further discussion now, especially as they may not recur on another trial.
The judgment is reversed and cause remanded.
Reversed and remanded.
Delivered March 12, 1889.